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Affirmative Defenses

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District Court (Cal.) Declines to Allow a Good Faith Defense under the TCPA

by Scott J. Hyman |

In Berman v. Freedom Fin. Network, No. 18-cv-01060-YGR, 2019 U.S. Dist. LEXIS 150810, at *3 (N.D. Cal. Sep. 4, 2019), Judge Gonzalez-Rogers found no good faith defense to a TCPA claim. The alleged facts were as follows: In the instant action, plaintiff Daniel Berman, on behalf of himself and a putative class, alleges violations of the Telephone Consumer Protection Act… Read More

District Court (Wash.) Finds that Federal TCPA Claim Should Have Been Filed as Compulsory Counter-claim in State Court Collection Action; Says that Debt Collection Attorney Had a Permissible Purpose to Access Debtor’s Consumer Report Even for Litigation

by Alisa A. Givental |

In Gilchrist v. First National Bank of Omaha, 2018 WL 317267, at *2–3 (W.D.Wash., 2018), Judge Pechman dismissed a federal TCPA claim because it was compulsory to a debt collection action filed in the state court. There is no question in the Court's mind that there is a logical relationship between (1) the credit agreement between the Bank and Plaintiff, (2)… Read More

District Court (Mich.) Applies 4-year SofL to TCPA Claim to Bar Recovery for Some Calls; Remaining Calls Were Actionable Due to Oral Revocation

by Scott J. Hyman |

In Gold v. Ocwen Loan Servicing, LLC, 2017 WL 6342575, at *2 (E.D.Mich., 2017), Judge Murphy granted in part and denied in part a TCPA defendant's motion to dismiss. Plaintiff's TCPA claims regarding phone calls made prior to May 10, 2013 are time barred. TCPA claims are subject to a four-year statute of limitations. See 28 U.S.C. § 1658(a); see… Read More

District Court (Mo.) Says that TCPA’s Damages Provision Has Constitutional Limitations

by Scott J. Hyman |

In Golan v. Veritas Entertainment, LLC, 2017 WL 3923162, No. 4:14CV00069 ERW (E.D. Mo. September 7, 2017), Judge Webber found, after a trial on the merits, that the TCPA’s damages provision has constitutional due process limitations and, therefore, reduced the statutory damages to be awarded to $10 per call. The violations in this case involved the use of automated telephone equipment… Read More

Necessity Makes Strange Bedfellows: District Court (Minn.) Finds TCPA Claim Against Labor Union’s Robo Calls Survives Constitutional Challenge; Fed. Gov’t Intervenes in Support of TCPA Plaintiff and Constitutionality of TCPA

by Scott J. Hyman |

In Greenley v. Laborers' International Union of North America, Defendant, and United States of America, Intervenor., 2017 WL 4180159, at *1 (D.Minn., 2017), Judge Wright found that a TCPA claim brought against a Union survived a Motion to Dismiss and constitutional challenge.  The facts were as follows: Greenley's amended complaint alleges that during a sixteen-month period from November 14, 2014, through March… Read More

District Court (Mo.) Allows Constitutional Challenge to TCPA to Proceed as an Affirmative Defense

by Scott J. Hyman |

In Connector Castings, Inc. v. Newburg Road Lumber Co., 2017 WL 3621329, at *2 (E.D.Mo., 2017), Judge Webber refused to strike an affirmative defense lodging a constitutional challenge to the TCPA. In its first affirmative defense, Defendant asserts, in relevant part, “The Telephone Consumer Protection Act…violates the First Amendment of the United States Constitution on its face and as applied.”… Read More

District Court (Mo.) Says TCPA Class Actions Have Some Due Process Limitations on Damages; Telemarketing Calls Cannot Exceed the Scope of the Consent Given

by Scott J. Hyman |

In Golan v. Veritas Entertainment, LLC, 2017 WL 2861671 (E.D. Mo. 2017), Judge Webber held that there could be due process limitations on the amount of damages recoverable in a TCPA class action. In their Motion for Partial Summary Judgment on the Issue of Damages [ECF No. 239], Plaintiffs ask the Court to determine the amount of damages to be… Read More

District Court (Kan.) Says Husband Has Standing Under TCPA as Customary User of Wife’s Cell Phone, But Did Not Qualify Husband as “Residential Subscriber” Under TCPA’s DNC Rules

by Scott J. Hyman |

In Lee v. Loandepot.com, LLC, 2016 WL 4382786, at *5 (D.Kan., 2016), Judge Melgren held that the Husband, as a regular user of the wife's cell phone, had standing to sue under the TCPA. Moving on to the legal issue at hand, the 2015 FCC Order defines the term “called party” as the “subscriber, i.e., the consumer assigned the telephone… Read More

District Court (N.J.) Strikes Improper Affirmative TCPA Defenses, but Allows First Amendment Defense to be Asserted

by Scott J. Hyman |

In Vazquez v. Triad Media Solutions, Inc., 2016 WL 155044, at *4-5 (D.N.J., 2016), Judge Walls struck an affirmative defense in a TCPA text message case asserting EBR, strikes a ruinous penalty affirmative defense, but allows a First Amendment challenge to proceed.  Judge Walls  found EBR not properly asserted in a text message case because "The Third Circuit has held that the… Read More

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